Whistleblowing: Defining protected disclosures

What is whistleblowing?

An employee who is dismissed for making a public interest disclosure – Whistleblowing – can claim Unfair Dismissal even without the two years’ continuous service that is normally required. What is more, there is no cap placed on the amount of compensation that can be awarded, so successful claims can be very expensive for employers.

Related Article: How long does protection for whistle-blowing go?

Simpson v Cantor Fitzgerald

In the case of Simpson v Cantor Fitzgerald however, the employee’s claim was unsuccessful. Mr Simpson had been employed for less than a year as a trader for an investment bank when he was dismissed.

He claimed that his dismissal was the result of numerous allegations that he had made over the course of his employment about the behaviour of his fellow traders. In all the Tribunal identified 37 specific allegations.

What is a protected disclosure?

The Tribunal held that none of these were protected disclosures. Broadly, a protected disclosure is a disclosure of information that tends to show that some legal wrongdoing has occurred and which the employee reasonably believes is in the public interest.

What is the difference between a complaint and whistleblowing?

The Tribunal found that many of Mr Simpson’s disclosures were really just complaints that he had lost out on commission because of the way in which trades were carried out. The real reason he had been dismissed was that ‘distrustful and obstructive’ behaviour had made it ‘utterly impossible for the team to work with him’.

Whistleblowing Appeal

Nevertheless, the case reached the Court of Appeal which upheld the Tribunal’s findings.  The Tribunal had been entitled to find that the allegations that he relied on were not protected disclosures – whether because they were insufficiently specific or because Mr Simpson did not genuinely believe that they tended to show wrongdoing on the part of the employer or its employees.

Whistleblowing and reason for dismissal

In any event, the complaints themselves were not the reason for dismissal. The Tribunal had found that the manager who made the decision to dismiss was not influenced by those allegations, but by the hostile and corrosive attitude that Mr Simpson displayed towards colleagues, as well as his poor timekeeping.

He was dismissed because his employer considered him to be a poor team player, not because he had made protected disclosures.

Whistleblowing: A specialist’s view

Chris Dobbs says "This case is a useful warning for employees intending to make whistleblowing allegations but also confirms the existing understanding of what does and does not amount to a protected disclosure. In order to qualify, these require there to be ‘information’. A general complaint or even a specific one which does not actually indicate some kind of wrongdoing is unlikely to satisfy the requirement.

However, what is and is not specific enough will be circumstantial. The Court of Appeal gave useful examples in the 2010 case of Kilraine v London Borough of Wandsworth where they said that an employee claiming “you don’t follow health and safety regulations” would, in isolation, not always be a protected disclosure. However, if it was said while pointing at syringes lying around a hospital ward, it probably would be.'

Whistleblowing: COVID & furlough fraud

Employers should be particularly careful in relation to employees raising concerns about compliance with government regulation (in particular, Health & Safety) and advice during the pandemic. Reporting an employer for breach of preventative legislation or for furlough fraud because of a genuine belief in wrongdoing is almost certainly going to qualify as a protected disclosure.

That employee would then have a claim for any detriment suffered as a result of raising those concerns even if they were ultimately proved wrong.

COVID advice and guidance: Stay up to date

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Related Article: How long does protection for whistle-blowing go?